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TANZYMORE v. BETHLEHEM STEEL CORP.

January 21, 1971

Eugene TANZYMORE
v.
BETHLEHEM STEEL CORPORATION v. YOUNG-POSEN, INC.


John W. Lord, Jr., Chief Judge.


The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, Jr., Chief Judge.

 Presently before the Court is defendant Bethlehem Steel Corporation's motion to dismiss this action on the ground that this Court lacks jurisdiction, in that Eugene Tanzymore is a citizen of Pennsylvania. Upon consideration of oral argument and the briefs submitted, the Court grants defendant's motion.

 Original jurisdiction is conferred on this Court in all civil actions where the matter in controversy exceeds the sum or value of $10,000.00, exclusive of interest and costs, and where it is between citizens of different states. 28 U.S.C.A. § 1332(a)(1).

 Both the depositions taken of the plaintiff, and his work record, indicate that he is at best a resident of Pennsylvania, and may, in fact, be a citizen of no state. It is well settled that the fact of being a resident of no state does not confer diversity jurisdiction upon the district courts. Pemberton v. Colonna, 189 F. Supp. 430 (E.D. Pa. 1960); Pannill v. Roanoke Times Co., 252 F. 910 (W.D. Va. 1918).

 In Pemberton, the plaintiff had been a resident of Pennsylvania from 1927-1950, at which time she moved to Mexico, where her presence was authorized by a tourist card, renewable every six months by the Mexican government. At the time of instituting the action, she owned property in Pennsylvania, maintained a bank account here, and filed her income tax within the Eastern District. However, at the time of bringing the action, plaintiff had been a resident of Mexico for ten years, and had no intention of returning to Pennsylvania; indeed, she planned to dispose of her American real estate holdings as soon as it was economically feasible for her to do so. The court found that she was a citizen of the United States, but at the same time, held no state citizenship.

 While the Pannill case, strongly relied upon by defendant, can be distinguished, we believe that its conclusion, that one not possessing state citizenship is barred from bringing a diversity action, is unquestionably correct. There, plaintiff wandered throughout the country, seeking to obtain financial assistance to offset medical expenses incurred as a result of a crippling accident. While plaintiff there expressed an intention not to return to any state which he had previously visited, and was clearly not a resident of any one state, plaintiff in the instant case has frequently stated that he intended to return to Ohio. However, all that is before us is plaintiff's unsupported assertion that he so intends. As will be made evident infra, this is not enough.

 Plaintiff asks that the fact that he has not voted in Ohio not be given controlling importance, and cites Watters v. Ralston Coal Co., 38 F. Supp. 16 (M.D. Pa. 1941). As here, plaintiff in Watters was required to be absent from Ohio for long periods of time; but asserted that he remained a resident of that state. While Watters did not vote in Ohio, he stored six rooms of furniture there, and maintained a safe deposit box. Plaintiff here not only does not vote in Ohio; he neither owns nor maintains any property, real or personal, nor does he have a bank account.

 Plaintiff urges in his brief that his entire deposition be read, that only there can the full import of his intention to return to Ohio be gleaned. This Court has of course read this deposition many times, and searchingly. They reveal only a self-serving allegation on the part of plaintiff to leave this jurisdiction and return to Ohio. Quoting from the deposition:

 Q. [By plaintiff's counsel]: What was your residence at that time? [The time of the accident, March 27, 1967.]

 A. Where I lived before I -- where I came from?

 Q. Yes.

 A. Well, I think I know what you are getting at. 7418 Lynwood Street, ...


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